Pity Merrick Garland. Whichever path America’s attorney-general takes — to prosecute Donald Trump or not — entails great risk. Putting the former president on trial would hasten the country’s drift towards political violence. Letting him walk away would make another coup attempt more likely. Garland is damned if he does and damned if he doesn’t. Either route could endanger US democracy.
The evidence amassed by the US House of Representatives’ January 6 committee is making it much harder to turn a blind eye. Garland’s quandary is acute. The standard of proof for a criminal conviction is considerably higher than lay observers of the January 6 protests might assume. A botched prosecution would make Trump stronger and even help re-elect him. When you strike at a king — even a former one — you must kill him.
Garland’s task would be to prove beyond doubt that Trump had criminal intent — a high bar that means showing not just that he tried to overturn the election but that he was fully aware what he was doing was illegal. We know Trump tried to reverse the result. Proving that he knew his actions were criminal means getting inside his head. The January 6 committee is making that job much easier.
Critics of the hearings say it is a partisan exercise. In a way they are right. Almost all the witnesses, including the former president’s daughter Ivanka Trump, his attorney-general Bill Barr, his former campaign manager Bill Stepien, numerous campaign lawyers, White House staff and state election officials — are Republican. The Democratic-majority committee, which includes two Republicans, has been disciplined in laying out the facts without indulging in preaching.
The effect of one Republican witness after another testifying that Trump was advised that Joe Biden’s victory was legitimate, that his plans to reverse it were unconstitutional, but that he nevertheless threatened those who failed to do his bidding, leaves little room for doubt. It seems Trump knew he was trying to overturn a fair election. The only question appears to be whether his lawyers would argue he was not of sound mind (though that defence would rule out his running for office again).
Those pressing Trump to accept an orderly transition of power referred to themselves as “team normal”, according to Stepien. This included his vice-president Mike Pence and the White House legal advisers. The other team notably included John Eastman, the former Supreme Court clerk and architect of the plan for Pence to reject the results, who admitted to colleagues that his strategy was unconstitutional. Team abnormal was aware of its intent. Eastman even requested a presidential pardon in advance, which implies strong evidence of guilt.
So what is holding Garland back? Almost nobody knows for sure — and the few who do know are not talking. Garland is scrupulous about keeping his process under wraps. He is also a stickler for the US Department of Justice’s independence. Since Garland was appointed by a Democratic president, his burden of proof is probably higher than the law requires. Any prosecution of a former president would have to be bulletproof and seen to be so. Biden is reportedly frustrated with the DoJ’s inaction. But in declining to pressure Garland, Biden is doing the opposite of what Trump would.
Democrats, and constitutional Republicans, should beware of investing Garland with superhuman powers. They made that mistake with Robert Mueller, the special counsel whose damning 2019 report into Trump’s Russia collusion — and obstruction of attempts to investigate it — was neutralised by a more cynical Washington operator. Garland could be Mueller’s heir. He is a public servant who goes by the book in an America that has given up reading. Washington’s savviest are still betting that Trump will escape prosecution.
Yet the savvy should also evaluate the cost of letting Trump get away with it. Roughly 40 per cent of America believes that the 2020 election was stolen. It is a small step from spurning concrete evidence to swallowing even darker myths. If that many Americans can deny what happened 18 months ago, how easy would it be to convince them that slavery, for example, was a lie? The risk of doing nothing is great. The law cannot be indifferent to the impact of its restraint.
The conventional wisdom was to judge the January 6 hearings on whether they would sway public opinion. But it is increasingly clear that their primary audience is America’s prosecutors. History keenly awaits Garland’s decision.